EXECUTIVE OFFICER CHANGE OF CONTROL AGREEMENT AS AMENDED
EXHIBIT 10.15
THIS EXECUTIVE OFFICER CHANGE OF CONTROL AGREEMENT AS AMENDED (the “Agreement”) is
entered into between ▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC., an Ohio corporation (the “Company”),
and , an individual (“Executive”), as of the day of ,
, under
the following circumstances:
The Board of Directors of the Company (the “Board”) considers the establishment and
maintenance of a sound and vital management to be essential to protecting and enhancing the best
interests of the Company and its shareholders. In this connection, the Board recognizes that, as is
the case with many publicly held corporations, the mere possibility of a change of control may
raise distracting and disrupting uncertainties and questions among management personnel, may
interfere with their whole-hearted attention and devotion to the performance of their duties, and
may even lead to their departure, all to the detriment of the best interests of the Company and its
shareholders. Accordingly, the Board, upon the recommendation of its Compensation Committee, has
determined that the best interests of the Company and its shareholders would be served by assuring
to certain executives of the Company, including Executive, the protection provided by an agreement
which defines the respective rights and obligations of the Company and Executive in the event of
termination of employment subsequent to a Change of Control of the Company (as defined in Section 2
of this Agreement).
In order to induce Executive to continue in the employ of the Company, this Agreement sets
forth the severance benefits which the Company agrees shall be provided to Executive in the event
Executive’s employment with the Company [or with a Successor to the Company (as defined at Section
10(a)] is terminated subsequent to a Change of Control under the circumstances described below.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
CONTAINED HEREIN, THE COMPANY AND EXECUTIVE AGREE AS FOLLOWS:
CONTAINED HEREIN, THE COMPANY AND EXECUTIVE AGREE AS FOLLOWS:
1. Certain Definitions.
(a) “Affiliate” means a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, a specified person.
(b) The “Effective Date” shall be the first date during the “Change of Control
Period” (as defined in Section 1(b) of this Agreement) on which a Change of Control occurs,
and, except as provided in the following sentence, no amount shall be paid or benefits provided
under this Agreement if Executive’s employment is terminated for any reason prior to a Change of
Control. Anything in this Agreement to the contrary notwithstanding, if Executive’s employment with
the Company is terminated by the Company prior to the date on which a Change of Control occurs, and
it is reasonably demonstrated that such termination (i) was at the request of a third party who has
taken steps reasonably calculated to effect a Change of Control
or (ii) otherwise arose in connection with or anticipation of a Change of Control, then for
all purposes of this Agreement the “Effective Date” shall mean the date immediately prior to the
date of such termination.
(c) The “Change of Control Period” is the period commencing on the date hereof and
ending on the earlier to occur of (i) the second anniversary of such date or (ii) the first day of
the month next following Executive’s attainment of age 65 (“Normal Retirement Date”);
provided, however, that commencing on the date one (1) year after the date hereof, and on each
annual anniversary of such date (such date and each annual anniversary thereof is hereinafter
referred to as the “Renewal Date”), the Change of Control Period shall be automatically
extended an additional year so as to terminate on the earlier of (i) two (2) years from such
Renewal Date or (ii) the first day of the month next following Executive’s Normal Retirement Date,
unless, at least 60 days prior to the Renewal Date, the Company shall give notice that the Change
of Control Period shall not be so extended in which event this Agreement shall continue for the
remainder of its then current term and terminate as provided herein.
(d) “Prorated Target Bonus” means the Target Bonus prorated for the period beginning
on the first day of the fiscal year in which occurs the Date of Termination through the Date of
Termination
(e) “Subsidiary” means an entity (whether or not a corporation) of which 50% or more
of the voting stock in the case of a corporation, or other equity interest having voting power in
the case of an entity that is not a corporation, is owned or controlled, directly or indirectly, by
the Company.
(f) “Target Bonus” means an amount equal to the target bonus Executive would have
received for the fiscal year that ends on or immediately after the Date of Termination, assuming
the Company achieved the target levels for which a bonus is paid under the Company’s annual bonus
plan then in effect.
(g) “Voting Shares” means any securities of a corporation that vote generally in the
election of directors of that corporation.
2. Change of Control. For the purpose of this Agreement, a “Change of
Control" shall mean and shall be deemed to have occurred the date on which one of the
following events occurs with respect to the Company (for the purposes of this Section 2, the term
“Company” means only ▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.):
(a) The Company is provided a copy of a Schedule 13D, filed pursuant to Section 13(d) of the
Securities Exchange Act of 1934 indicating that a group or person, as defined in Rule 13d-3 under
said Act, has become the beneficial owner of 25% or more of the outstanding Voting Shares of the
Company or the date upon which the Company first learns that a person or group has become the
beneficial owner of 25% or more of the outstanding Voting Shares of the Company if a Schedule 13D
is not filed provided, in each case, such group or person is not controlled, directly or
indirectly, by persons or entities that were, at any time this Agreement is in effect, partners,
shareholders or members of M.H.M. & Co. Ltd., an Ohio
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limited partnership, the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Co., Inc., or ▇▇▇▇▇▇ Investments, Inc. or Affiliates
of any of them;
(b) A change in the composition of the Board such that individuals who were members of the
Board on the date two years prior to such change (or who were subsequently elected to fill a
vacancy in the Board, or were subsequently nominated for election by the Company’s shareholders, by
the affirmative vote of at least two-thirds of the directors then still in office who were
directors at the beginning of such two year period) no longer constitute a majority of the Board;
(c) The consummation of a reorganization, merger, statutory share exchange or consolidation
involving the Company or any of its Subsidiaries (each a “Business Combination”) unless,
following such Business Combination, all or substantially all of the individuals and entities that
were the beneficial owners of the Voting Shares of the Company immediately prior to the Business
Combination beneficially own, directly or indirectly, more than 60% of the then outstanding Voting
Shares of the corporation resulting from such Business Combination in substantially the same
proportions as their ownership immediately prior to such Business Combination of the outstanding
Voting Shares of the Company; or
(d) Shareholders of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all, or substantially all, of the Company’s
assets.
3. Agreement Not Employment Contract – Employment at Will. This Agreement shall be
considered solely as a “severance agreement” obligating the Company to pay to Executive certain
amounts of compensation in the event and only in the event of his termination of employment after
the Effective Date for the reasons and at the time specified herein. Apart from the obligation of
the Company to provide the amounts of additional compensation as provided in this Agreement, the
Company shall at all times retain the right to terminate the employment of Executive since the
obligation of the Company to Executive shall only be considered as an employment relationship which
exists between the Company and Executive which may be terminated at will by either party subject to
the obligation of the Company to make payment and perform its obligations as provided in this
Agreement.
4. Termination.
(a) Death or Disability. This Agreement shall terminate automatically upon
Executive’s death. If the Company determines in good faith that the Disability of Executive has
occurred (pursuant to the definition of “Disability” set forth below), it may give to Executive
written notice of its intention to terminate Executive’s employment. In such event, Executive’s
employment with the Company shall terminate effective on the 30th day after the date of such
notice, provided that, within such 30-day period, Executive shall not have returned to full-time
performance of Executive’s duties. For purposes of this Agreement, “Disability” means
disability (either physical or mental) which, at least one hundred eighty (180) days after its
commencement, is determined by a physician selected by the Company or its insurers and acceptable
to Executive or Executive’s legal representative to be total and permanent (such agreement as to
acceptability not to be withheld unreasonably).
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(b) Cause. The Company has the right to terminate Executive’s employment for Cause,
and such termination shall not be a breach of this Agreement by the Company. “Cause” means
termination of employment for one of the following reasons: (i) the willful and continued failure
of Executive to perform substantially Executive’s duties with the Company or one of its
Subsidiaries (other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to Executive by the Board
or Chief Executive Officer of the Company which specifically identifies the manner in which the
Board or Chief Executive Officer believes that Executive has failed to substantially perform his
duties and such failure is not cured within fifteen (15) days of such written notice; (ii) an act
or acts of dishonesty taken by Executive and intended to result in substantial personal enrichment
of Executive at the expense of the Company; (iii) the willful engaging by Executive in illegal
conduct or gross misconduct; or (iv) a clearly established violation by Executive of the Company’s
Code of Conduct that is materially and demonstrably injurious to the Company. Further, for purposes
of this Section (b), no act, or failure to act, on Executive’s part shall be deemed
“willful" if done, or omitted to be done, by Executive in good faith and with a
reasonable belief that his action or omission was in the best interest of the Company.
(c) Good Reason. Executive’s employment may be terminated by Executive for Good
Reason, provided that Executive shall have delivered a Notice of Termination within ninety (90)
days after the occurrence of the event of Good Reason giving rise to such termination. Good Reason
shall mean the occurrence of one or more of the following circumstances, without Executive’s
express written consent, that are not remedied by the Company within thirty (30) days of receipt of
Executive’s Notice of Termination:
(i) The material diminution of the rate of Executive’s annual base salary in effect
immediately prior to the Effective Date (“Base Salary”) or material diminution of
Executive’s target bonus under the Company’s annual bonus plan in effect immediately prior
to the Effective Date;
(ii) A material diminution of Executive’s duties or responsibilities with the Company;
(iii) a material reduction in the level of benefits available or awarded to Executive
under employee and officer benefit plans and programs (other than as part of reductions in
such benefit plans or programs affecting similarly situated employees of the Company) that
would result in a material diminution in Executive’s overall compensation; or
(iv) failure of the Company to comply with and satisfy Section 10(a) of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause, or by Executive
for Good Reason, shall be communicated by Notice of Termination to the other party hereto given in
accordance with Section 12 of this Agreement. For purposes of this Agreement, a “Notice of
Termination” means a written notice which (i) indicates the specific termination
provisions in this Agreement relied upon, (ii) sets forth in reasonable detail the facts and
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circumstances claimed to provide a basis for termination of Executive’s employment under the
provision so indicated, and (iii) if the Date of Termination (as defined below) is other than the
date of receipt of such notice, specifies the Date of Termination. The failure by Executive to set
forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good
Reason shall not waive any right of Executive hereunder or preclude Executive from asserting such
fact or circumstance in enforcing his rights hereunder.
(e) Date of Termination. “Date of Termination” means the date Notice of
Termination is given by either the Company or Executive as the case may be or any later date
specified therein; provided, however, if Executive’s employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of Executive or the effective date
of Disability, as the case may be, and in the case of a termination for Good Reason, the Date of
Termination shall be the date specified in the Notice of Termination, which date shall not be less
than thirty (30) days nor more than forty (40) days after the Notice of Termination is given.
5. Obligations of the Company upon Termination Following Change of Control.
(a) Good Reason; Termination Other Than for Cause, Disability or Death. If, within
twenty-four (24) months after the Effective Date, the Company terminates Executive’s employment
other than for Cause, Disability or death, or if Executive terminates his employment for Good
Reason:
(i) The Company shall pay Executive (A) his Base Salary (or current salary then in
effect if higher than his Base Salary) through the Date of Termination, (B) any earned but
unpaid bonus for any prior fiscal year of the Company, and (C) all other unpaid amounts, if
any, to which Executive is entitled as of the Date of Termination under any compensation
plan or program of the Company, at the time such payments are due;
(ii) The Company shall pay to Executive an amount equal to Executive Prorated Target
Bonus as defined at Section 1;
(iii) The Company shall pay to Executive an aggregate amount equal to the product of
(A) the sum of (1) Executive’s Base Salary and (2) the average annual bonus paid to
Executive by the Company with respect to the three fiscal years that immediately precede the
fiscal year in which the Date of Termination occurs (or such lesser period that Executive
was employed by the Company) and (B) the number one and a half (1.5);
(iv) The Company shall maintain in full force and effect, for the continued benefit of
Executive (and his spouse and/or his dependents, as applicable) for a period of eighteen
(18) months following the Date of Termination the medical, hospitalization, and dental
programs, in which Executive (and his spouse and/or his dependents, as applicable)
participated immediately prior to the Date of Termination at the level in effect and upon
substantially the same terms and conditions (including
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without limitation contributions required by Executive for such benefits) as existed
immediately prior to the Date of Termination; provided, if Executive (or his spouse) is
eligible for Medicare or a similar type of governmental medical benefit, such benefit shall
be the primary provider before Company medical benefits are provided. If Executive (or his
spouse and/or his dependents) is prohibited from continued participation in Company programs
providing such benefits due to plan limitations or governmental laws or regulations, the
Company shall arrange to provide Executive (and his spouse and/or his dependents, as
applicable) with the economic equivalent of such benefits which they otherwise would have
been entitled to receive under such plans and programs (“Continued Benefits”). If
Executive becomes reemployed with another employer and is eligible to receive medical,
hospitalization and dental benefits under another employer-provided plan, the medical,
hospitalization and dental benefits described herein shall be secondary to those provided
under such other plan during the applicable period;
(v) The Company shall reimburse Executive pursuant to the Company’s policy for
reasonable business expenses incurred, but not paid, prior to the Date of Termination;
(vi) All options, shares of restricted stock, performance shares and any other equity
based awards shall be and become fully vested as of the Date of Termination and,
notwithstanding any provision to the contrary in the applicable Award Agreement, any such
options may be exercised and shall not expire until the earlier of (A) the expiration of the
option term as set forth in the Award Agreement or (B) the first annual anniversary of the
Date of Termination;
(vii) Executive shall be entitled to any other rights, compensation and/or benefits as
may be due to Executive following termination to which he is otherwise entitled in
accordance with the terms and provisions of any plans or programs of the Company; and
(viii) The Company shall pay Executive amounts described in this Section 5(a) as
follows: (a) all amounts paid pursuant to a separate plan, program, agreement or arrangement
shall be paid as provided therein unless specifically provided otherwise in this Section
5(a); (b) reimbursements (other than reimbursements or benefits provided in Section
5(a)(iv)) that fit within the exception to Code Section 409A provided in Section
1.409A-1(b)(9)(v) (reimbursements that Executive could otherwise deduct under Code Section
162 or Code Section 167 as business expenses incurred in connection with the performance of
services, ignoring any applicable limits based on AGI) shall be paid within 20 days of the
Date of Termination; provided, however, if any reimbursements do not fall within that
exception, such reimbursements shall be made on the first day of the seventh calendar month
following the calendar month in which the Date of Termination occurred; (c) amounts paid to
Executive pursuant to Subsections (i), (ii), and (iii) of Section 5(b)(i) shall be paid
within 20 days of the Date of Termination; and (d) such other amounts shall be paid in
accordance with the Company’s normal payroll practices in effect on November 9, 2007.
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(b) Termination for Cause, Disability or Death or by Executive Other than for Good
Reason. If, within twenty-four (24) months after the Effective Date, Executive’s employment
is terminated for Cause, Disability, death or by Executive other than for Good Reason:
(i) The Company shall pay Executive (i) his Base Salary (or current salary then in
effect if higher than his Base Salary) through the Date of Termination, (ii) any earned but
unpaid bonus for any prior fiscal year of the Company; (iii) Executive’s Prorated Target
Bonus as defined in Section 1; and (iv) all other unpaid amounts, if any, to which Executive
is entitled as of the Date of Termination under any compensation plan or program of the
Company at the time such payments are due; provided, however, if the termination is for
Cause or by Executive other than for Good Reason, then Executive shall not be entitled to,
or paid, the items listed in clauses (ii) and (iii) of this Section 5(b)(i);
(ii) The Company shall reimburse Executive pursuant to the Company’s policy for
reasonable business expenses incurred, but not paid, prior to termination of employment,
unless such termination resulted from a misappropriation of Company funds;
(iii) Executive shall be entitled to any other rights, compensation and/or benefits as
may be due to Executive following termination to which he is otherwise entitled in
accordance with the terms and provisions of any plans or programs of the Company; and
(iv) The Company shall pay Executive amounts described in this Section 5(b) as follows:
(a) all amounts paid pursuant to a separate plan, program, agreement or arrangement shall be
paid as provided therein unless specifically provided otherwise in this Section 5(b); (b)
reimbursements that fit within the exception to Code Section 409A provided in Section
1.409A-1(b)(9)(v) (reimbursements that Executive could otherwise deduct under Code Section
162 or Code Section 167 as business expenses incurred in connection with the performance of
services, ignoring any applicable limits based on AGI) shall be paid within 20 days of the
Date of Termination; provided, however, if any reimbursements do not fall within that
exception, such reimbursements shall be made on the first day of the seventh calendar month
following the calendar month in which the Date of Termination occurred; (c) amounts paid to
Executive pursuant to Sections 5(b)(i)(ii) and (iii) shall be paid within 20 days of the
Date of Termination; and (d) such other amounts shall be paid in accordance with the
Company’s normal payroll practices in effect on November 9, 2007.
6. No Duplication of Benefits. Notwithstanding the fact that Executive is entitled to
benefits as provided under this Agreement, if Executive is also entitled to receive payment of
benefits under a severance plan of the Company (“Severance Plan"), and payment of
benefits under this Agreement, then, such payments due upon termination of employment of Executive
shall only be paid under this Agreement or under the Severance Plan whichever is most favorable to
Executive.
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7. Mitigation. Executive shall not be required to mitigate amounts payable under this
Agreement by seeking other employment or otherwise, and there shall be no offset against amounts
due Executive under this Agreement on account of subsequent employment except as specifically
provided herein.
8. Confidential Information; Ownership of Documents; Non-Competition.
(a) Confidential Information. Executive acknowledges that he has had, and will have,
access to certain Confidential Information (as hereinafter defined) of the Company and its
Subsidiaries and Executive agrees that he will not at any time, directly or indirectly, disclose
orally or in writing or use any Confidential Information, regardless of how it may have been
acquired, unless the disclosure or use of such Confidential Information is expressly authorized in
writing in advance by the Company, is necessary in the ordinary conduct of Executive’s duties under
this Agreement or is required by law. “Confidential Information” means all information
pertaining or relating to the Company’s or its Subsidiaries’ business, including, but not limited
to, products, pricing, drawings and bills of materials, manufacturing and application engineering
know-how, services, strategies, customers, customer list, customer account records, financial
information, employee compensation, marketing plans, computer software (including all operating
system and system application software) and other proprietary business information. As used
herein, Confidential Information shall not include any information which (i) is or becomes
generally known to the public other than as a result of the disclosure or use thereof by Executive
in violation of the terms of this Agreement or (ii) is obtained by Executive from a third party who
is lawfully in possession of such information and is not subject to any obligation to refrain from
disclosing such information. Executive acknowledges and agrees that all of the Confidential
Information is and shall continue to be the exclusive proprietary property of the Company and its
Subsidiaries whether or not prepared in whole or in part by Executive and whether or not disclosed
to or entrusted to the custody of Executive.
(b) Removal of Documents; Rights to Products; Other Property. All records, files,
drawings, documents, models, equipment, and the like relating to the Company’s business or its
Subsidiaries’, which Executive has control over may not be removed from the Company‘s
premises without its written consent, unless removal is in the furtherance of the Company’s
business or is in connection with Executive’s carrying out his duties under this Agreement and, if
so removed, shall be returned to the Company promptly after termination of Executive‘s
employment under this Agreement.
(c) Non-Competition Provisions.
(i) Executive agrees that while employed by the Company and for the 12-month period
immediately after Executive ceases to be employed by the Company for any reason, Executive
shall not, without the prior written consent of the Company, either directly or indirectly,
perform any services (whether advisory, consulting, employment or otherwise) for, invest in
or otherwise become associated with in any capacity, any person, corporation, partnership or
other entity which engages in a Competitive Business (as defined in Section 8(c)(ii));
provided, however, that nothing
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herein contained shall prevent Executive (A) from purchasing and holding for investment
less than 2% of the shares of any corporation, the shares of which are regularly traded
either on a national securities exchange or in the over-the-counter market or (B) from
providing services to any corporation, partnership, or other entity if the Competitive
Business represents less than 15% of the gross revenues of such corporation, partnership, or
entity and Executive’s services are not rendered, directly or indirectly, to the division or
subsidiary which is engaged in the Competitive Business.
(ii) For purposes of this Agreement, “Competitive Business” means the design,
engineering, manufacture, marketing, distribution, sale, or servicing in the Prohibited
Territory (as defined below) of (i) processing or packaging equipment used in the
pharmaceutical industry, (ii) wellhead, drilling, recovery and transmission equipment used
in the oil and gas industry, or (iii) progressing cavity pumps, industrial mixers and
agitators, or glass-lined reactor and storage vessels used in any industry. “Prohibited
Territory” means the countries in which the Company or one of its Subsidiaries had
manufacturing, distribution facilities, or sales offices at any time that Executive was
employed by the Company.
(d) Non-Solicitation or Hire . Executive agrees that while employed by the Company and
for the 12-month period immediately after Executive ceases to be employed by the Company for any
reason, Executive shall not, without the prior written consent of the Company, either directly or
indirectly, solicit or attempt to solicit or induce, directly or indirectly, (i) any person or
entity who is or was a customer of the Company or its Subsidiaries while Executive was employed by
the Company for the purpose of marketing, selling or providing to any such person or entity any
services or products of the same general type offered by or available from the Company or its
Subsidiaries or (ii) any person who was an employee of the Company or any of its Subsidiaries on
the Date of Termination to terminate such employee’s employment relationship with the Company or
its Subsidiaries in order to enter into a similar relationship with Executive, any business which
then employs Executive or to which Executive provides any services, or any Competitive Business.
(e) Injunctive Relief. Executive acknowledges that compliance with the covenants and
provisions in this Sections 8 is necessary to protect the Company and that a breach of these
covenants will result in irreparable and continuing damage for which there will be no adequate
remedy at law. Accordingly, Executive agrees that in the event of any breach of said covenants or
provisions, the Company and its successors and assigns shall be entitled to injunctive relief
(including specific performance) and to such other and further equitable relief (in addition to
money damages) as is proper in the circumstances. Executive further agrees to waive the securing
or purchasing of any bond in connection with any such remedy.
(f) Judicial Modification . If any court determines that any of the covenants in
Section 8, or any part of any of them, is invalid or unenforceable, the remainder of such covenants
and parts thereof shall not thereby be affected and shall be given full effect, without regard to
the invalid portion. If any court determines that any of such covenants, or any part thereof, is
invalid or unenforceable because of the geographic or temporal scope of such provision, such court
shall reduce such scope to the minimum extent necessary to make such covenants valid and
enforceable.
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(g) Continuing Operation. Except as specifically provided in this Section 8, the
termination of Executive’s employment or of this Agreement shall have no effect on the continuing
operation of this Section 8.
9. Arbitration; Legal Fees and Expenses. The parties agree that Executive’s
employment and this Agreement relate to interstate commerce, and that any disputes, claims or
controversies between Executive and the Company which may arise out of or relate to Executive’s
employment relationship or this Agreement shall be settled by arbitration. This agreement to
arbitrate shall survive the termination of this Agreement. Any arbitration shall be in accordance
with the Rules of the American Arbitration Association and undertaken pursuant to the Federal
Arbitration Act. Arbitration shall be held in Dayton, Ohio unless the parties mutually agree on
another location. The decision of the arbitrator(s) shall be enforceable in any court of competent
jurisdiction. The parties agree that punitive, liquidated or indirect damages shall not be awarded
by the arbitrator(s) unless such damages would have been awarded by a court of competent
jurisdiction. Nothing in this Agreement to arbitrate, however, shall preclude the Company from
obtaining injunctive relief from a court of competent jurisdiction prohibiting any on-going
breaches by Executive of this Agreement including, without limitation, violations of Section 8. If
any contest or dispute arises between the Company and Executive regarding any provision of this
Agreement, the Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, except that the Company shall not
be obligated to pay any legal fees or expenses incurred by Executive in any contest in which the
trier of fact determines that the Executive’s position was frivolous or maintained in bad faith.
Such reimbursement shall be made as soon as practicable following the final, non-appealable
resolution of such contest or dispute to the extent the Company receives reasonable written
evidence of such fees and expenses.
10. Agreement Binding on Successors.
(a) Company’s Successors. No rights or obligations of the Company under this
Agreement may be assigned or transferred except that the Company shall require any successor
(whether direct or indirect, by purchase, merger, reorganization, sale, transfer of stock,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no succession had taken place. As used
in this Agreement, “Company” means the Company as hereinbefore defined and any successor to its
business and/or assets (by merger, purchase or otherwise as provided in this Section 10(a)) which
executes and delivers the agreement provided for in this Section 10 or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law.
(b) Executive’s Successors. No rights or obligations of Executive under this
Agreement may be assigned or transferred by Executive other than his rights to payments or benefits
under this Agreement, which may be transferred only by designation of a beneficiary in accordance
with this Section 10(b) or by will or the laws of descent and distribution. Upon Executive’s death,
this Agreement and all rights of Executive under this Agreement shall inure to the benefit of and
be enforceable by Executive’s beneficiary or beneficiaries, personal or legal representatives, or
estate, to the extent any such person succeeds
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to Executive’s interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or compensation payable
under this Agreement following Executive‘s death by giving the Company written notice
thereof in a form acceptable to the Company. In the event of Executive’s death or a judicial
determination of his incompetence, reference in this Agreement to Executive shall be deemed, where
appropriate, to refer to his beneficiary(ies), estate or other legal representative(s). If
Executive should die following his Date of Termination while any amounts would still be payable to
him under this Agreement if he had continued to live, all such amounts unless otherwise provided
shall be paid in accordance with the terms of this Agreement to such person or persons so appointed
in writing by Executive, or otherwise to his legal representatives or estate.
11. Savings Clause.
(a) Limitation on Payments. Sections 280G and 4999 of the Code impose a 20% excise tax
on excessive compensation received by, and deny a deduction to the Company for the amount of excess
compensation paid to, employees who are officers, shareholders or highly compensated individuals as
a result of a change in the ownership or effective control of the Company or in the ownership of a
substantial portion of the Company’s assets (a “Change in Control”). In general, payments
to an individual that are contingent on a Change in Control will not be treated as excessive if
such payments are less than three (3) times the average annual compensation received by such
individual over the five (5) years preceding the Change in Control. The provisions that follow are
designed to maximize the amounts payable to Executive under this Agreement in the event of a Change
in Control, taking into consideration the possible application of the foregoing Code provisions.
(b) Notwithstanding anything in this Agreement to the contrary, in the event that it is
determined that any payment by the Company to Executive or for Executive’s benefit, whether paid or
payable pursuant to the terms of this Agreement or otherwise, would be taxable because of Section
4999 of the Code, then the aggregate present value of amounts payable to Executive or for
Executive’s benefit pursuant to this Agreement shall be reduced to the Reduced Amount unless
Section 11(c) below applies. For purposes of this subparagraph, the “Reduced Amount” shall be
defined as an amount expressed in present value which maximizes the amounts payable pursuant to
this Agreement without causing any such payments to be taxable to Executive because of Section 4999
of the Code.
(c) If the Net After Tax Benefit of all amounts payable to Executive pursuant to this
Agreement exceeds the Net After Tax Benefit of the Reduced Amount, then this Section 11 shall not
apply to limit any amount payable to Executive. “Net After Tax Benefit” means the amount
payable to Executive or for Executive’s benefit pursuant to this Agreement (whether the Reduced
Amount or the full amounts payable to Executive under this Agreement), less the sum of (i) the
amount of federal income taxes payable with respect to such amounts and (ii) the amount of excise
taxes payable on such amounts pursuant to Section 4999 of the Code, if any. For purposes of this
Section 11(c), federal income taxes payable in respect of future payments shall be those prescribed
by the Code at the time the calculation is made for the periods in which the same shall be payable.
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(d) An initial determination as to whether any reduction in payments and benefits is necessary
in order to comply with Section 11(b) above and, if so, the calculation of the Reduced Amount shall
be made by the Company and furnished to Executive in writing within seven (7) days following the
date of the Change of Control of the Company. From time to time thereafter as necessary and, in any
event, upon termination of Executive’s employment, the Company shall re-examine its determination
and recalculate the Reduced Amount and promptly furnish information with respect to the same to
Executive in writing. The Company’s determination and its calculation of the Reduced Amount
following the termination of Executive’s employment will be final and binding upon Executive unless
Executive notifies the Company within eight (8) days after Executive receives the Company’s
determination and calculation that Executive disputes the same. Within ten (10) days after
Executive so notifies the Company, Executive shall deliver to the Company a statement of the basis
for Executive’s opinion as to whether any reduction in payments and benefits is necessary, pursuant
to Section 11(b) above and, if so, Executive’s calculation of the Reduced Amount. If, within ten
(10) days after the Company receives such statement, the Company and Executive are unable to agree
as to whether any reduction is necessary or as to the calculation of any amounts under this Section
11, then the Company and Executive shall, within three (3) days thereafter, choose a nationally
recognized accounting firm to resolve any such dispute. Such accounting firm’s determination shall
be made promptly and delivered to the Company and Executive within twenty (20) days of its
appointment and shall be final and binding on the parties. All costs incurred in connection with
the accounting firm’s determination shall be borne by the Company.
(e) To the extent that a determination and calculation of the Reduced Amount becomes final and
binding in accordance with Section 11(d) and a reduction in payments and benefits is necessary,
then the reduction shall occur in the following order: (i) cash payments; (ii) cancellation of
accelerated vesting of performance-based equity awards, if any (based on the reverse order of the
date of grant); (iii) cancellation of accelerated vesting of other equity awards, if any (based on
the reverse order of the date of grant); and (iv) reduction of welfare benefits.
(f) Pending a final and binding determination and calculation of the Reduced Amount in
accordance with this Section 11, Executive shall have the right to require the Company to pay to
Executive all or any undisputed portion of the Reduced Amount, as determined and calculated by the
Company, that would be then due and payable to Executive pursuant to this Agreement. Such payment
shall be made within two (2) days after the date of receipt of notice from Executive requesting
such payment.
(g) The Company shall pay to Executive or for Executive’s benefit that portion of the Reduced
Amount which is then due and payable (less any amount previously paid pursuant to Section 11(f)
above) within fifteen (15) days after the date upon which any determination and calculation of the
Reduced Amount becomes final and binding in accordance with Section 11(d) above. The balance of
the Reduced Amount shall be paid promptly as the same becomes due and payable under this Agreement.
(h) In the event that the Internal Revenue Service or a court of competent jurisdiction makes
a final determination that any payments to Executive under this
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Agreement are taxable to Executive pursuant to Section 4999 of the Code, and such payments should
not have been made under the terms of Sections 11(b) and (c) hereof (such taxable payments and
benefits being referred to hereinafter as an “Overpayment”) or in the event that the Code
shall be amended or final regulations thereunder adopted and, as a result thereof, payments or
benefits previously made to Executive under this Agreement should not have been made under the
terms of Sections 11(b) and (c) and are thus recharacterized as an Overpayment, the amount of such
Overpayment shall be treated for all purposes as a loan to Executive which shall be repayable by
Executive within thirty (30) days after demand by the Company, together with interest at the
applicable federal rate specified for a demand loan in Section 7872(f)(2) of the Code, compounded
semiannually. The foregoing provision relating to Overpayments shall be applicable notwithstanding
previous compliance by the Company and Executive with the requirements of this Section 11;
provided, however, that no such Overpayment shall be repaid by Executive to the Company if and to
the extent that, despite making such repayment, the amount which is subject to taxation under
Section 4999 of the Code would not be reduced.
12. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have been
duly given when delivered either personally or by United States certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to Executive:
At his last known address evidenced on the
Company’s payroll records.
Company’s payroll records.
If to the Company:
▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President and Chief Executive Officer
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President and Chief Executive Officer
or to such other address as any party may have furnished to the others in writing in accordance
with this Agreement, except that notices of change of address shall be effective only upon receipt.
13. Withholding. All payments and benefits hereunder shall be subject to any required
withholding of federal, state and local taxes pursuant to any applicable law or regulation.
14. Compliance with Code Section 409A. It is intended that the payments and benefits
provided under this Agreement shall either be exempt from the application of, or comply with, the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). This
Agreement shall be construed, administered, and governed in a manner that effects such intent, and
the Company shall not take any action that would be inconsistent with such intent. Without
limiting the foregoing, the payments and benefits provided under this Agreement may not be
deferred, accelerated, extended, paid out or modified
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in a manner that would result in the imposition of an additional tax under Section 409A of the
Code upon Executive.
15. Miscellaneous. No provisions of this Agreement may be amended, modified, or
waived unless agreed to in writing and signed by Executive and by a duly authorized officer of the
Company. No waiver by either party of any breach by the other party of any condition or provision
of this Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. The respective rights and obligations of the parties under
this Agreement shall survive Executive’s termination of employment and the termination of this
Agreement to the extent necessary for the intended preservation of such rights and obligations. The
validity, interpretation, construction and performance of this Agreement shall be governed by the
laws of the State of Ohio without regard to its conflicts of law principles.
16. Validity. The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
17. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall constitute one and the same
instrument.
18. Section Headings. The section headings in this Agreement are for convenience of
reference only, and they form no part of this Agreement and shall not affect its interpretation.
19. Entire Agreement. Except as provided elsewhere herein, this Agreement sets forth
the entire agreement of the parties with respect to its subject matter and supersedes all prior
agreements, promises, covenants, arrangements, communications, representations or warranties,
whether oral or written, by any officer, employee or representative of any party to this Agreement
with respect of such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.
| ▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC. |
||||
| By: | ||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief | ||||
| Executive Officer | ||||
| EXECUTIVE | ||||
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